| Summary: | The Gina Miller judgment of the United Kingdom Supreme Court will be famous for its protection of the rule of law against an overreaching executive. But it should also be remembered for affirming the systematic nature of the British unwritten constitution. The Supreme Court rejected the older theory of the constitution, on which some of the government’s submissions relied, according to which the British constitution is based on the political fact of parliamentary sovereignty (or an equivalent ‘rule of recognition’) and is for that reason different from that of all other states. This was the view outlined by A. V. Dicey and endorsed by the British legal community for almost a century. The Supreme Court majority (and it is possible that the minority does too) rejected Dicey’s constructions and outlined a different theory of the constitution, widely described as the ‘common law’ theory. For this view, the UK’s constitution is higher law made by the conscious decisions of a legislature to create principles of fundamental significance. Joining the EU was a constitutional change brought about by parliament in this way. For this reason, withdrawal from the EU must also be a decision of the legislature by way of an act of parliament. The Supreme Court considers the unwritten constitution to be a system of principles whose origins lie in the legal transformation of the United Kingdom three centuries ago by way of the Bill of Rights 1688, the Act of Union 1707 and other constitutional statutes that created the higher law of the constitution.
|
|---|